ticular times, are absolute in their nature; and as a general rule accident or casualty would not excuse their nonperformance. But by the law merchant, it must be remembered, that although due demand and notice are conditions precedent to the liability of drawers and indorsers, the contract of the holder is only that he will exercise due diligence to make such demand and give such notice; and this implies an exception in favor of those unavoidable accidents which prevent it.20

§ 1068a. Miscarriage or delay in transmission by mail. Upon this principle, if the holder confide the bill or note to the public mail, as a means of transmitting it for presentment, and without negligence on his part, he could not justly be liable for any delay arising out of any accident, miscarriage, or default in the postal service.21 And as has been said, speaking of a bill," such mode of transmission is in accordance with the general commercial usage and law in the case of paper of this description. Indeed, it is recommended by the books as the most proper mode of transmission, as being the least hazardous, and therefore preferable to a special or private conveyance. And accordingly it was held in the case quoted, where the bill had been deposited in the post-office in time for due presentment in due course of mail, and by mistake of the postal clerk in misdirecting the package, it did not duly reach its destination, that the delay did not discharge the indorser.22 But if the holder has been himself in fault in causing the delay in transmission by the mail, or blame is imputable to him in the misdirection of the bill, he will not be excused for failure in prompt presentment.23

20. Lord Ellenborough, in Patience v. Townly, 2 J. P. Smith, 223; Windham Bank v. Norton, 22 Conn. 213.

21. Windham Bank v. Norton, 22 Conn. 213. See ante, § 1021.

22. Windham Bank v. Norton, 22 Conn. 213, Storrs, J. To same effect, see Pier v. Heinrichsoffen, 67 Mo. 163, in which case holder of note payable in a distant city sent it to a bank there for collection. The letter was returned by the postmaster marked, " bank failed." Holder at once mailed it to another agent in the city, who immediately caused presentment and protest, but it was several days after maturity. Held, that indorsers were not discharged. 23. Schofield v. Bayard, 3 Wend. 488. In this case the holders of a bill, payable in London, by mistake of their own, sent it to Liverpool for presentment. Their agents sent it back by mail in time to reach the holders, and be by them sent to London, if it had reached them in due season. But by a mistake of the post-office it did not reach the holders in time to be reforwarded by them in due season. The court held that the fault was in the holders, and

§ 1069. Accident or calamity must be preventive of diligence. It should distinctly appear when an accident, or calamity, or op eration of superior force is brought forward as an excuse for nonpresentment, that it has the effect to prevent its being duly made. The mere fact that a violent storm occurred at the time, unless it also appeared that it obstructed communication, would not suffice.24 But if there were a general calamity involving a community, it might be different. Doubtless the conflagrations, suddenly laying large portions of Boston and Chicago in ruins, will give rise to questions of this kind. When communities are visited by such overwhelming and appalling calamities as these, all thoughts of business must give way to considerations of self-preservation and humanity; and should cases involving their effect be presented to the courts, it would be safe to predict that this doctrine of excuses will find a liberal application. The excuse of inevitable accident or calamity will apply as well to protest when it is thereby prevented, and if it is made as soon afterward as it reasonably can be, that will suffice.25

§ 1070. When impediment ceases, duty to make demand or give notice revives. These excuses-war, military or political disturbance, interdiction of commerce, prevalence of disease, overwhelming accidents, et cetera - do not justify a total dispensation of demand and notice, but only excuse the delay which these circumstances may occasion. As soon as the impediment ceases, the duty revives; and if demand and notice be not speedily made. the holder is in default, and drawers and indorsers are discharged.26 Thus, where the holder of a bill in New York delayed,

that failure of due presentment could not be excused, Savage, C. J., saying: "This presents no impossibility if due diligence had been used. The plaintiffs should not have sent the bill to Liverpool at all. It is true that, after the letter containing it had been left at Liverpool, it could not have reached London in due season; but it was the fault of the plaintiffs to have parted with the bill in the manner they did. Instead of sending it to Liverpool they should have sent it to London, and then it would have been in season, and probably would have been paid."

24. Edwards on Bills, 493; Merchants' State Bank v. State Bank of Philips, 94 Wis. 444, 69 N. W. 170.

25. Story on Bills, § 283.

26. Farmers' Bank v. Gunnell, 26 Gratt. 132; Tarby v. Boyd, 26 Gratt. 631; McVeigh v. Bank of Old Dominion, 26 Gratt. 785; Bynum v. Apperson, 9 Heisk. 632; Lane v. Bank of W. T., Heisk. 419; Billgerry v. Branch, 19 Gratt. 393; Apperson v. Union Bank, 4 Coldw. 445; Morgan v. Bank of Louisville,

for several months after restoration of commercial intercourse between New York and New Orleans (the former being in the United States, and the latter in the Confederate States during the war of secession), to present the bill to the acceptor in New Orleans for payment, it was held that the drawer was discharged.27 In Maryland, it was said by Stewart, J.: "There must be the earliest possible presentment when impediment ceased." " 28

§ 1071. In Pennsylvania,29 it appeared that two bills which were drawn (and indorsed) in Pennsylvania upon a house in New Orleans, were duly protested on the 11th and 29th of July, 1861, respectively, in that city. Communication was suspended between New Orleans and Pittsburg, where the parties entitled to notice resided, until July 1, 1862, when the first mail was received at the latter place. Under these circumstances, and there being considerable intervals between the mails, notice received. at Pittsburg July 11, 1862, was considered within reasonable time, and held sufficient. But in Kentucky,30 where there was a delay of over five months in forwarding notice after the reopening of communication, which had been suspended, it was said it could not be "deemed reasonable nor accounted for by the then political condition of the country."

4 Bush, 82; House v. Adams, 48 Pa. St. 266; James v. Wade, 21 La. Ann. 548; Peters v. Hobbs, 25 Ark. 67; Durden v. Smith, 44 Miss. 552; Dunbar v. Tyler, 44 Miss. 10; Shaw v. Neal, 19 La. Ann. 156.

27. Durden v. Smith, 44 Miss. 552. See Dunbar v. Tyler, 44 Miss. 10.

28. Norris v. Despard, 38 Md. 491.

29. House v. Adams, 48 Pa. St. 266.

30. Morgan v. Bank of Louisville, 4 Bush, 82.

CHAPTER XXXI.

SPECIAL CIRCUMSTANCES OF EXCUSE WHICH SHOW AN ORIGINAL ABSENCE OF RIGHT TO REQUIRE PRESENTMENT, PROTEST, OR NOTICE.

§ 1072. Besides the circumstances of a general nature which excuse delay of absence of presentment, protest, or notice, there are some of a special nature which have the like effect. These special circumstances may be classified as follows: I. Circumstances showing an original absence of right to require these steps to be taken. II. Circumstances arising from special acts of waiver. III. Circumstances which show an inability on the part of the holder to make due presentment or protest, or give notice. IV. Special circumstances arising from the conduct of the party. V. Special waivers by promises to pay and part payments after maturity. These circumstances, thus classified, and ramifying into many details, will be now separately considered.

SECTION I.

DRAWING WITHOUT RIGHT TO DO SO, OR REASONABLE GROUND TO EXPECT THAT BILL WILL BE HONORED.

§ 1073. In the first place, when the drawer has drawn the bill without the right to do so, or without any reasonable ground to expect that the drawee would honor it, the omission of the holder to make a due presentment of it for acceptance or payment (no acceptance intervening), or to give the drawer due notice of its dishonor by the drawee, will be excused.1 This doctrine rests upon the ground that the drawer has committed fraud or folly in undertaking that the drawee would honor his bill, when he had no right or reasonable ground to expect it; and that he can suffer no loss or injury from the failure of the holder to make a presentment to the drawee, which would naturally be fruitless, or to give him, the drawer, notice of a dishonor which he must have known by anticipation.

1. Chitty on Bills (13th Am. ed.) [*436], 490; Story on Bills, §§ 280, 375; Cashman v. Harrison, 90 Cal. 297, 27 Pac. 283, citing text.

VOL. II-8

This excuse applies alike to presentment, protest, and notice, for the reason that all the steps ordinarily taken to fix the drawer's liability are predicated upon the assumption that he has drawn the bill in good faith, and after proper provision for its payment, and when such is not the case he is absolutely liable. The authorities to this effect are overwhelming in number as they are clear in principle; but there are a few cases which hold that it does not apply to presentment, for the reason that the drawee might have accepted or paid for the honor of the drawer.3

So any fraud relating to the instrument committed by the drawer will excuse want of due diligence, presentment, or notice. Thus, if having obtained a draft or check, he should sell it for value, and, before its presentment, should obtain a duplicate and sell it for an additional sum, or draw out the money upon it, he would be absolutely liable on the first draft or check.*

5

§ 1074. As to lack of funds. It was held in an early English case, which has been much quoted, that when the drawer had no funds in the hands of the drawee, no notice would be necessary to charge him, for the reason, as assigned by one judge, that drawing a bill in such a case is a fraud, and, as assigned by another, that no injury could result to the drawer. And the rule is often laid down in the language that the want of funds excuses the holder from giving notice; the statement of it in this form arising from the fact that, when the bill has been improvidently drawn, it turns out that there were no funds to meet it. But the converse proposition is not true, that, whenever there are no funds provided to meet the bill, the drawer was improvident in drawing it. The drawee may have promised to accept or pay for the drawer's accommodation, or have come under an obligation, founded on legal consideration, to do so. And the true criterion of the right to require due demand and notice is, not whether the drawer had funds. in the drawee's hands, but whether or not the drawer had a right to expect or require that the drawee would honor his bill.7 When

2. 1 Parsons on Notes and Bills, 530, note m; Story on Bills, § 280.

3. Cruger v. Armstrong, 3 Johns. Cas. 5, Radcliffe, J.; English v. Wall, 12 Rob. (La.) 132.

4. Moody v. Mack, 43 Mo. 212.

5. Beckerdike v. Bollman, 1 T. R. 405 (1786); Donnell v. Savings Bank, 80 Mo. 172, citing the text; Compton v. Blair, 46 Mich. 1.

6. Edwards on Bills, 640; Lawrence v. Hammond, 4 App. D. C. 467. 7. Life Ins. Co. v. Pendleton, 112 U. S. 708; French v. Bank of Columbia,